Claimant's Counsel Entitled to Fee for Defending Fee Petition in Court

An employer is liable for a reasonable fee incurred by the claimant’s attorney in defending a fee petition, the Board recently re-affirmed.  This rule had been established in a number of Board and Circuit court decisions.  However, in Clisso v. Elro Coal Co., the employer argued that the U.S. Supreme Court’s recent decision in Baker Botts L.L.P. v. ASARCO LLC, 576 U.S. _____, 135 S. Ct. 2158 (2015), required a change in the existing rule.  Baker Botts held that a certain provision of the bankruptcy code does not permit a bankruptcy court to award attorney’s fees for defending a fee petition in court.  The Board rejected the application of Baker Botts to the Longshore Act, noting that the Baker Botts holding has been limited solely to the bankruptcy context.  As a result, the Board maintained the existing rule allowing an attorney’s fee award to include time defending the fee petition in court.

Clisso v. Elro Coal Co., BRB No. 15-0470 (6/20/16)